Comparative Guides
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Results: 4 Answers
Patents
8.
Claim construction
8.1
When during a patent infringement action are claim terms defined by the tribunal?
 
UK
Claim construction issues are addressed by the judge, usually in the judgment following the trial of the invalidity and infringement issues.

For more information about this answer please contact: Sarah McFarlane from Powell Gilbert
8.2
What is the legal standard used to define claim terms?
 
UK
Claims in UK patents are construed purposively, by asking what the person skilled in the art would understand the language of the claims to mean. The claims must therefore be interpreted through the eyes of the person skilled in the art, interpreting the words of the claim in the context of the specification as a whole, and having regard to the fact that the patent owner’s purpose was to describe and claim an invention.

There has been debate since the decision of the Supreme Court in Actavis v Eli Lilly [2017] UKSC 48 as to whether this remains the approach to claim construction in the United Kingdom, but a number of Patents Court decisions have concluded that it does; this was also confirmed by the Court of Appeal in Icescape v Ice-World [2018] EWCA Civ 2219. However, in considering infringement, it is now necessary to go on to consider whether a claim is infringed on the basis of equivalence.

For more information about this answer please contact: Sarah McFarlane from Powell Gilbert
8.3
What evidence does the tribunal consider in defining claim terms?
 
UK
It is generally accepted that the issue of claim construction is a question of law for the judge. However, as the addressee of the patent is the ‘person skilled in the art’, evidence can be admitted that assists the court in reading the patent through the eyes of the skilled person. This is typically provided by experts, including evidence as to the common general knowledge, the meaning of any technical terms and the technical consequences of particular constructions.

For more information about this answer please contact: Sarah McFarlane from Powell Gilbert